Scrupulous Scribbling for a Saner Society

In the policy-maker sweepstakes, the Supremes win

It’s bad enough for a sitting government with an entire justice department at its disposal to be judged broadly inept on matters of law. But to be found so wanting by one of the country’s leading conservative think tanks?

Gadzooks! Et tu, Brute?

But there it was last week for all to witness: The Macdonald-Laurier Institute’s 2014 pick for policy-maker of the year.

The winner was (cue drum roll) the Supreme Court of Canada. The reason was (cue kazoo) it managed to wipe its hallowed chambers with government lawyers 70 per cent of the time in big, landmark cases.

Allow into evidence, if you will, item #1: The federal Tories wanted an elected Senate and thought they could push a form of one through legislative channels without opening up the Constitution and all that pesky inter-provincial wrangling that is, in fact, the very essence of Confederation.

This almost dismissive “now-off-you-go-and-play-nice-for-a-change” routine transpired seven times in 10 Supreme Court considerations of government cases. Apart from the Senate decision, these included key matters involving aboriginal title and land claims, prostitution, the appointment of Supreme Court justices from Quebec, cybercrime, truth in sentencing, and retrospective repeal of accelerated parole review.

For Benjamin Perrin – an Associate Professor at the University of British Columbia, Faculty of Law and a Senior Fellow at the Macdonald-Laurier Institute – who who picked this year’s top policy-maker, the decision was a no-brainer:

“The policy and legal impact of the Supreme Court of Canada’s decisions of the last year are significant and likely enduring; the Supreme Court of Canada was a remarkably united institution with consensus decisions on these significant cases being the norm, and dissenting opinions rare; and the federal government indeed has an abysmal record of losses on significant cases, with a clear win in just one in 10 of them.”

What’s more, if there had been a concerted effort to stack the court with justices who could be counted upon to tow the Conservative Party line, that effort seems to have failed miserably. “(Mr. Perrin’s) analysis showed that the court reached a consensus decision in 80 per cent of these cases – higher than the average over the past decade,” a Macdonald-Laurier press release stated.

Added Mr. Perrin, himself: “There is no evidence whatsoever of any observable split in the Court’s decisions on significant issues between the six judges appointed by Prime Minister Harper and the three judges appointed by previous prime ministers.”

Make no mistake, these are no trifling matters. Mr. Perrin correctly observes that 2014 hosted a disproportionate number of landmark cases. The government’s losing streak effectively handed the keys to the castle to the judicial branch.

“In its decisions on significant constitutional matters in the last year, the Supreme Court of Canada has made bold decisions that fundamentally affect the way Canadian Democracy functions,” he writes.

Furthermore, he concludes, “The most significant and enduring impact of the Supreme Court of Canada in the last year will be its interpretation of the amending procedures in the Constitution Act, 1982, in its reference decisions related to Senate reform and the appointment of judges to the high court from Quebec. Taken together, these decisions entrench the Senate and Supreme Court of Canada as institutions that are virtually untouchable. Changing the composition of either institution has been determined to require the unanimous approval of the House of Commons and the Senate as well as every provincial legislature.”

So, then what happened in 2014?

Did the government know the law well enough before it argued its cases before the court? Or, did justice lawyers feel that discretion was the better part valor (or, at least, their own job security) before politely suggesting that their political masters were out to lunch on one or more points of precedent?

In any case, Mr. Perrin thinks a post-mortem is in order. “Until this is exhaustively done, it would be premature, as some commentators have suggested, to conclude that there is a fundamental rift in values between the federal government and the Court.”

Maybe, but from where this commentator stands, it sure looks that way.